On appeal from a final administrative determination of the Board of Trustees of the Public Employees' Retirement System.
Gruccio and Landau. The opinion of the court was delivered by Landau, J.A.D.
This matter comes before us on transfer from the Law Division. Petitioner-appellant Anna Szczepanik, a former Union County employee, sought by action in lieu of prerogative writs to compel the State Division of Pensions (Division), Public Employees' Retirement System (PERS) to enforce, and the County of Union to make, contributions to the Retirement System on her behalf for the duration of Workers' Compensation benefits, received by reason of a job-related accident which rendered her permanently partially disabled. The trial judge decided that the principal legal issue in the case arose by reason of a final determination of PERS, and so transferred the matter to the Appellate Division. R. 1:13-4(a); 2:2-3(a)(2).
Although the case presents several procedural questions, we have concluded that the substantive issue merits consideration and that, contrary to the opinion of the PERS board and staff, Union County should have been required to pay pension contributions on behalf of Szczepanik while she received Workers' Compensation payments, thereby enabling her to complete the
ten years of service necessary to retire on an ordinary disability pension.
Anna Szczepanik, a clerk transcriber for Union County, was enrolled in PERS since September 1976. On November 20, 1980, she was injured in a job-related accident. Thereafter, she instituted a Workers' Compensation proceeding. At her request, she was placed on extended sick leave without pay after the accident. Although Szczepanik applied for temporary and permanent Workers' Compensation disability benefits while on leave of absence, a final compensation award was not made until April 24, 1986. The Workers' Compensation judgment awarded her 104 and 2/7 weeks of temporary disability and 225 weeks of permanent partial disability, for a total of 329 and 2/7 weeks of Workers' Compensation benefits. She did not receive an award for permanent total disability.
On April 10, 1985, Szczepanik also filed an application with PERS for accidental disability retirement benefits. When this was denied on July 22, 1985, she appealed the denial and received a hearing before an Administrative Law Judge (ALJ) during the latter part of 1986. On December 3, 1986, (after the Workers' Compensation award) the ALJ issued an opinion which recommended that the PERS denial of Szczepanik's application for accidental disability retirement benefits be upheld, notwithstanding the Workers' Compensation determination of work-connected disability, because Szczepanik had not suffered a "traumatic event" within the meaning of N.J.S.A. 43:15A-43.*fn1 The ALJ's decision recommended, however, that the application be treated as one for ordinary disability benefits under N.J.S.A. 43:15A-42, and that Szczepanik receive an ordinary disability pension.
In order to qualify for ordinary disability benefits, N.J.S.A. 43:15A-42 requires among other things, that the member be under 60 years of age, and have "ten or more years of credit for New Jersey service." Under N.J.S.A. 43:15A-25.1(a), if a PERS member "receives periodic benefits payable under the Workmen's Compensation Law during the course of his active service, in lieu of his normal compensation, his regular salary deductions shall be paid to the retirement system by his employer. . . . The moneys paid by the employer shall be credited to the member's account in the annuity savings fund and shall be treated as employee contributions for all purposes. The employer will terminate the payment of these moneys when the periodic benefits payable under the Workmen's Compensation Law are terminated or when the member retires."
Thus, as the combination of Szczepanik's active working period between 1976 and 1980 with 329 2/7 weeks of Workers' Compensation benefits was deemed to extend Szczepanik's active service to produce ten or more years of credit, the ALJ concluded that ordinary disability retirement was appropriate.
Although the Board of Trustees of PERS (Board) received this initial ALJ determination on December 5, 1986, it did not render a final decision within the 45-day period as prescribed by N.J.S.A. 52:14B-10(c). On January 29, 1987, the Board decided to accept the ALJ's recommendation to deny accidental disability retirement, but rejected his recommendation that Szczepanik be granted ordinary disability retirement. By letter dated February 7, 1987, this was communicated to Szczepanik's attorney. The "final administrative determination" letter, including findings of fact and conclusions of law, however, was dated February 24, 1987. This February 24th letter was inconclusive on the issue of ordinary disability in that it left open the opportunity for Union County to make "appropriate employer contributions pursuant[ ] to N.J.S.A. 43:15A-25.1(a)." The letter advised: "Only when such payments have been made and credited into Mrs. Szczepanik's account will she have obtained
the 10 years of service necessary to qualify for Ordinary Disability benefits."*fn2
Prior to the final Workers' Compensation determination, and the Board's determination, Union County challenged Szczepanik's employee status in another way. On November 19, 1985, the Chief Probation Officer of Union County requested that she submit her resignation by December 31, 1985, warning that she would otherwise be terminated. This letter was in response to Szczepanik's request for an extension of her sick leave of absence without pay. Szczepanik responded on December 28, 1985, that she was still under doctor's care and that she refused to submit a resignation. The County then sent her a preliminary notice of disciplinary action dated January 15, 1986, which charged her with absence without leave and advised that the County would regard her as having resigned, not in good standing effective December 2, 1985. On January 29, 1986, Szczepanik responded, submitting her resignation in good standing and pointing out that her inability to work was the result of a work-related fall requiring continued doctor's care. Szczepanik stated that if her resignation in good standing was not accepted, she would request a departmental hearing. By letter dated February 3, 1986, Union County purported to accept her resignation in good standing effective January 29, 1986.
Our attention turns to the reasons given by the Board and staff for rejecting the ALJ recommendation that Szczepanik be deemed qualified for an ordinary disability pension.*fn3 On February
26, 1987, the Division wrote to Union County requiring that it pay pension contributions on behalf of Szczepanik for the period during which she received temporary disability benefits under Workers' Compensation. That letter, however, also advised the County that it could voluntarily make contributions on petitioner's behalf, at its option, for the period during which she received permanent disability compensation benefits. Interestingly the brief submitted on behalf of PERS now says that this advice was incorrect and that only an award of permanent total disability, as distinct from an award of permanent partial disability, ...